The Honorable Richard H. Battey, United States District Judge 1

for the District of South Dakota.

___________

No. 95-1941

___________

Michael Jenner, *

*

 Appellant, *

*

v. * Appeal from the United States

* District Court for the

Joe Class, Warden, South Dakota * District of South Dakota.

State Penitentiary; Mark W. *

Barnett, South Dakota Attorney *

General, *

*

 Appellees. *

___________

 Submitted: November 16, 1995

 Filed: April 1, 1996

___________

Before HANSEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Michael Jenner was found guilty by a South Dakota state court jury

of premeditated murder, conspiracy to commit murder, and accessory to

murder. His convictions were affirmed on all direct appeals. He filed a

petition for writ of habeas corpus, which the district court denied. On 1

appeal, Jenner contends that he was provided ineffective assistance of

counsel and his trial was fundamentally unfair because of the trial court's

refusal to sever his trial from that of his co-defendant. He also argues

that the
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evidence was insufficient to convict him and he was denied due process

because of excessive and prejudicial trial security. We affirm.

The facts of this case are set forth in the South Dakota Supreme

Court opinion, State v. Jenner, 434 N.W.2d 76, 77-79 (S.D. 1988). We will

not restate the facts in detail, but will discuss those facts relevant to

the issues raised by Jenner.

Jenner's convictions arose from the execution-style murder of Jackie

Sjong, a prospective witness in a California murder prosecution. Ricky

Fenstermaker, a member of the Vagos motorcycle club, stabbed a hitchhiker

to death on a California highway. Sjong, Fenstermaker's cousin, witnessed

the stabbing. Jenner, the president of the Los Angeles chapter of the

Vagos, along with co-defendant Richard Elliott, shot Sjong near the KOA

campground in Sturgis, South Dakota, while the group was attending the

annual Black Hills motorcycle rally. Jenner was convicted of first degree

murder, conspiracy to commit murder, and accessory after the fact to

murder. After Jenner exhausted his state appeals, he petitioned for habeas

corpus relief. The district court denied the writ, and Jenner appeals.

I.

Jenner raises several claims of ineffective assistance of counsel.

He claims his trial counsel was ineffective on several grounds, including

counsel's: (1) failure to object to alleged vouching for prosecution

witness Fenstermaker; (2) failure to explain the presence of a Fenstermaker

family photograph in Jenner's wallet; (3) failure to fully impeach

Fenstermaker; (4) failure to object to testimony that Jenner had been

previously incarcerated; (5) failure to propose an accomplice instruction;

(6) failure to object to an attack on defense counsel; (7) failure to

introduce evidence that Jenner does not smoke; (8) failure to
 Jenner also argues he was denied due process because of the 2

prosecution's vouching for Fenstermaker. Because we conclude no

improper vouching took place, we reject Jenner's due process

argument.

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object to the prosecution's questioning of Jenner about not calling alibi

witnesses; and (9) failure to object to the prosecution's questioning

Jenner whether certain witnesses were lying. 

Our review of counsel's representation is "highly deferential."

Strickland v. Washington, 466 U.S. 668, 689 (1984). To establish

ineffective assistance of counsel, Jenner must show that trial counsel's

performance was deficient and that Jenner was prejudiced. Id. at 687;

Flieger v. Delo, 16 F.3d 878, 886 (8th Cir.), cert. denied, 115 S. Ct. 355

(1994). Counsel's representation is deficient if it falls "below an

objective standard of reasonableness." Strickland, 466 U.S. at 688.

Counsel's decisions are presumed reasonable and "strategic choices made

after thorough investigation of law and facts . . . are virtually

unchallengeable . . . ." Id. at 690. Strickland explained that to show

prejudice, the petitioner "must show that there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694. The Court subsequently refined

the prejudice inquiry, explaining that the test for demonstrating prejudice

is not solely a matter of outcome determination, but rather, whether the

trial was fundamentally unfair or unreliable. Lockhart v. Fretwell, 506

U.S. 364, 369-71 (1993); Battle v. Delo, 19 F.3d 1547, 1554 (8th Cir.

1994).

Jenner first claims that his counsel was ineffective in failing to

object to the prosecution's alleged vouching for Fenstermaker. During

2

Fenstermaker's direct examination, the prosecutor asked Fenstermaker if he

was required to testify truthfully as a condition of his grant of immunity,

and "that the only way that [he] could get in trouble testifying here in

this
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case . . . would be if [he] would come in and not tell the truth." In

closing argument, the prosecutor also stated that Fenstermaker had no

motive to lie, because if he did lie, his immunity would be cancelled.

Jenner contends these two instances amounted to improper vouching. 

The South Dakota Supreme Court rejected this argument in Jenner's

state habeas appeal, concluding there was no improper vouching. Jenner v.

Leapley, 521 N.W.2d 422, 427-28 (S.D. 1994). We have reviewed the

testimony and argument and hold no improper vouching occurred. The

prosecutor did not place the prestige of the government behind the witness,

suggesting that the prosecutor had some special knowledge, not known to the

jury, that the witness was testifying truthfully. See United States v.

Magee, 19 F.3d 417, 421 (8th Cir.) (similar statements held not to be

improper vouching), cert. denied, 115 S. Ct. 343 (1994). The prosecutor

simply relayed the terms of Fenstermaker's immunity agreement. See Id.

Thus, trial counsel's failure to object to the questioning and statements

was well within the range of professionally reasonable judgment and does

not constitute ineffective assistance of counsel. 

Jenner next contends that his trial attorney was ineffective for

failing to present certain evidence. During the state's rebuttal argument,

the prosecutor raised the question of how Jenner obtained a photograph of

Fenstermaker's child and former girl-friend, implying that Jenner got the

photograph from Sjong after he killed him. Jenner contends his trial

counsel was ineffective for failing to explain that he actually got the

photograph from Fenstermaker's former girlfriend. Jenner also complains

about counsel's failure to establish that he did not smoke. Two cigarette

butts were found at the murder scene. There was testimony at trial that

someone with the same blood type as Sjong smoked one of the cigarettes, and

that Elliott did not smoke. 

The South Dakota Supreme Court rejected these arguments. The
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court ruled that the prosecution improperly argued in rebuttal that Jenner

may have obtained the family photograph from Sjong's body after killing him

because these comments went beyond the scope of issues raised by Jenner's

closing argument. 521 N.W.2d at 429. Nevertheless, the court found no

prejudice. Id. Similarly, the court concluded that counsel's failure to

introduce evidence that Jenner did not smoke did not constitute deficient

performance or prejudicial error. Id. at 430.

Jenner did not receive ineffective assistance of counsel for failure

to present evidence. First, a prosecutor's presentation of

new argument during rebuttal is an error of state law, and does not rise

to the level of a constitutional violation. See Whitmore v. Lockhart, 8

F.3d 614, 625 (8th Cir. 1993); Berrisford v. Wood, 826 F.2d 747, 749 (8th

Cir. 1987), cert. denied, 484 U.S. 1016 (1988). Second, counsel's failure

to present evidence that Jenner received the photograph from Fenstermaker's

girlfriend was not prejudicial. The prosecutor did not emphasize the

photograph and did not misstate the evidence. Jenner had the photograph

in his wallet when he was arrested. See United States v. Felix, 867 F.2d

1068, 1075 (8th Cir. 1989). 

Similarly, Jenner was not prejudiced by trial counsel's failure to

establish that he did not smoke. There was no evidence linking the

cigarette to Jenner, only evidence that one of the cigarettes could have

been Sjong's. Evidence that Jenner did not smoke would not have changed

the outcome at trial.

Jenner next argues that his trial counsel was ineffective for failing

to impeach Fenstermaker with Fenstermaker's four prior felony convictions

for burglary and receiving stolen goods.

Jenner's trial counsel explained that he did not use these

convictions to impeach Fenstermaker because the jury was informed of the

details of Fenstermaker's manslaughter conviction. Trial
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counsel reasoned that the burglary and stolen goods convictions were less

serious than the evidence that Fenstermaker stabbed someone to death for

making an obscene gesture at him. This reasoning is objectively reasonable

and counsel was not deficient. See English v. United States, 998 F.2d 609,

613 (8th Cir.) (ineffective assistance of counsel not demonstrated by

attorney's failure to call a witness to impeach another witness), cert.

denied, 114 S. Ct. 573 (1993). 

Jenner further argues that his counsel was ineffective for not

objecting to testimony that Jenner had been in prison. Jenner's counsel

did not object to co-defendant Elliott's testimony that he only talked to

Jenner "a couple times because [Jenner] was in the joint most of the time."

Trial counsel explained that he did not object because he did not want to

further emphasize Jenner's incarceration. Counsel's failure to object

amounts to a reasonable trial strategy. See Whitmore, 8 F.3d at 624

(reasonable tactical decision not to object to evidence about a prior

conviction). 

Jenner also cites counsel's failure to propose an accomplice

instruction as an example of ineffective assistance of counsel. He says

his trial counsel should have proposed an instruction informing the jury

that Fenstermaker was an accomplice to the Sjong murder and the jury should

view Fenstermaker's testimony cautiously. 

The South Dakota Supreme Court held that Jenner was not entitled to

an accomplice instruction because Fenstermaker was not an accomplice under

state law. Given the South Dakota Supreme Court's ruling, there is no

basis for ruling that counsel was deficient for not proposing the

instruction. See Berrisford, 826 F.2d at 752-53. 

Jenner next contends that his trial counsel's failure to
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withdraw his notice of alibi amounted to ineffective assistance of counsel.

Before trial, Jenner's counsel filed a notice of alibi defense,

listing six witnesses, as required by S. D. Codified Laws Ann. § 23A-9-1

(1988). Jenner's attorney subpoenaed and called only one of these

witnesses because he was unable to locate the other witnesses. During the

prosecutor's cross-examination of Jenner, the prosecutor brought out

Jenner's failure to call the alibi witnesses. Jenner now argues his trial

counsel was ineffective for failing to object to this questioning and for

failing to withdraw the notice.

The South Dakota Supreme Court found no error in trial counsel's

failure to object because counsel never withdrew the notice, and,

therefore, the prosecution's inquiry was proper under section 23A-9-6. The

court further reasoned that even if counsel erred in failing to withdraw

the notice, there was no prejudice, as the prosecution could still refer

to the lack of alibi witnesses under South Dakota case law. We are

satisfied that the prosecutor directed his comments at Jenner's failure to

call alibi witnesses, which is not a basis for an ineffective assistance

claim. See Epps v. Iowa, 901 F.2d 1481, 1483 (8th Cir. 1990). 

Jenner also claims his counsel was ineffective for failing to object

to the prosecution's questioning of Jenner and closing argument. During

Jenner's cross-examination, the prosecutor asked Jenner whether other

witnesses were lying. The South Dakota Supreme Court ruled that it was

"probably improper" to ask whether other witnesses were lying, but it was

not prejudicial. 521 N.W.2d at 432. After careful review of the

questioning, we conclude that the references were isolated and directed to

contradictions in witness' testimony. No prejudice occurred. See United

States v. Williams, 897 F.2d 1430, 1432-33 (8th Cir. 1990).

 
 Jenner also argues that the trial court erred in admitting

3

testimony of a witness that Elliott asked the witness to retrieve

Elliott's gun from the trash and to get a shovel to bury the body.

Jenner does not develop this argument in detail and fails to

specify any constitutional violation or even trial error. See

Jenner, 434 N.W. 2d at 82 (testimony admissible under coconspirator exception to hearsay rule).

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Jenner also argues ineffective assistance based on his attorney's

failure to object to an attack on counsel's integrity. The prosector stated

in his closing argument:

You see, they had this kind of a meeting. They had this idea.

`Hey, we can both get out of this deal together if we stick

together. We can both get out.' But you know what? You've

heard it said before, there is no honor among thieves. There

certainly isn't honor among murderers. When it came down to

it, it was each man for himself. They pointed the finger at

each other and the very least, ladies and gentlemen, you can't

walk out of that jury room without at least finding one of them

guilty, because the evidence is there.

Jenner's trial counsel had met with Elliott before Elliott testified

at trial. At trial, Elliott changed his story, and Jenner's counsel

impeached him. Jenner contends that the prosecutor's statement directly 3

attacked the truthfulness of his attorney, accusing him of concocting a

story.

A fair interpretation of the prosecutor's argument, however, is that

the prosecutor accused Jenner, not his attorney, of fabricating a defense.

Thus, trial counsel's failure to object was neither deficient nor

prejudicial. See United States v. Fuller, 887 F.2d 144, 147-48 (8th Cir.

1989), cert. denied, 496 U.S. 908 (1990). 
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II.

Jenner next claims his trial was fundamentally unfair because the

trial court refused to sever his trial from that of co-defendant Elliott.

Jenner claims his trial was fundamentally unfair because the jury could not

compartmentalize the evidence as it related to the separate defendants and

the separate counts. Jenner also claims that his defense was antagonistic

and mutually exclusive to Elliott's, and Elliott's unexpected change of

story at trial made it impossible for him to receive a fair trial.

"In challenging the trial court's failure to sever his trial from

that of his codefendant, [Jenner] bears a heavy burden." Hollins v.

Department of Corrections, 969 F.2d 606, 608 (8th Cir. 1992). This court

will not grant habeas relief unless Jenner can establish that the failure

to grant severance rendered his trial fundamentally unfair. Id.

In affirming Jenner's convictions, the South Dakota Supreme Court

rejected Jenner's severance argument, finding that Jenner "failed to make

the requisite showing that his defense and that of Elliott were so

irreconcilable that severance was required." 434 N.W.2d at 81. The court

reasoned that the conflict between the codefendants did not compel the jury

to believe Elliott's story to the exclusion of Jenner's.

Following the South Dakota court decision, the Supreme Court

explained that the joint trial of defendants with mutually antagonistic or

irreconcilable defenses is not prejudicial per se, so as to require the

trial court to sever the trial of codefendants. Zafiro v. United States,

506 U.S. 534, 538 (1993). Hostility or finger pointing among the

defendants is not enough to require separate trials. See id. at 540.

Severance is required only when "there is a serious risk that a joint trial

would compromise a specific trial right of one of the defendants, or
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prevent the jury from making a reliable judgment about guilt or innocence."

Id. at 539. Jenner fails to articulate any trial right compromised by the

joint trial or explain how the joint trial prevented the jury from making

a reliable judgment. Id.

We are similarly unpersuaded that the number of charges and number

of defendants mandated severing the trials. Jenner does not explain why

the jury could not compartmentalize the evidence of the three charges

against the two defendants. See United States v. Lucht, 18 F.3d 541, 553-

54 (8th Cir. 1994), cert. denied, 115 S. Ct. 363 (1994); United States v.

O'Connell, 841 F.2d 1408, 1431-33 (8th Cir. 1988), cert. denied, 488 U.S.

1011 (1989). Jenner has not shown fundamental unfairness.

III.

Jenner next argues that there is insufficient evidence to support his

convictions. We will grant relief for insufficient evidence only when the

evidence at trial is such that no rational trier of fact could have found

guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979). The evidence is considered in the light most favorable to the

prosecution. Id.

Jenner argues that the photograph was the only physical evidence

linking him to the Sjong murder, and absent his counsel's mistakes, the

prosecution could not have used this evidence to gain a conviction.

Besides Elliott's testimony identifying Jenner as the murderer, a

significant amount of additional evidence pointed towards Jenner's guilt.

There was evidence that Jenner was a member of the Vagos, and that the

Vagos had a policy of killing "snitches." Indeed, Fenstermaker testified

that he thought Sjong was killed because he was a snitch. Fenstermaker

testified that following his arrest in California he telephoned Jenner, and

Jenner told him not to "worry about it," he would "take care of it."

Jenner told Fenstermaker not to call him or any other Vago until he
 Jenner directs us to newspaper article written during his

4

trial which described the courthouse as "a modern-day Alamo before

the attack." 

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heard from somebody. After Sjong's death, another witness testified that

he overheard Jenner say that "the witness has been taken care of. . . ."

Finally, there was evidence linking Jenner to the murder scene and one of

the murder weapons. Ample evidence existed for a rational trier of fact

to have found guilt beyond a reasonable doubt.

IV.

Finally, Jenner contends that his due process rights were violated

because of security measures taken at trial.

There is no record evidence, however, to tell us what security

measures Jenner endured at his trial. Jenner states that there were armed

federal marshals in the courtroom and throughout the courthouse. He

4

states that all spectators had to pass through a metal detector and

spectators were not allowed to stay when the defendants entered or left the

courthouse. He states that certain floors of the courthouse were closed,

and restrictions were placed on who he could speak with in the courthouse.

Jenner says that the security measures, especially when coupled with

the other trial errors, gave the jury the impression that Jenner was

extremely dangerous and guilty, and this violates his due process rights.

Even assuming we have an adequate record to review Jenner's claim,

we cannot conclude the security measures identified by Jenner were so

prejudicial that Jenner was denied a fair trial. Holbrook v. Flynn, 475

U.S. 560, 568-70 (1986) (identifiable courtroom guards are not a per se

constitutional violation); Hellum
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v. Warden, 28 F.3d 903, 907 (8th Cir. 1994) (additional security personnel

and use of metal detectors are less prejudicial than physical restraints

because of wider range of inferences that juror might reasonably draw from

their use).

We affirm the district court's denial of the writ of habeas corpus.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.